On appeal from the Decision of the Commissioner of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Koblitz and Newman.
Plaintiff, Pleasantville Board of Education (the Board), appeals from the decision by defendant, former Commissioner of Education, Lucille E. Davy (the Commissioner), appointing a fiscal monitor for a term beginning October 1, 2009, through September 30, 2011. We affirm.
The background facts are not in dispute. The Commissioner appointed a fiscal monitor, John Deserable, on March 26, 2007, to the Board pursuant to the School District Fiscal Accountability Act. N.J.S.A. 18A:7A-55 to -60 (SDFAA), effective on or about July 1, 2007. That term was to end on June 30, 2009. The Commissioner then, in a letter of June 23, 2009, appointed an interim fiscal monitor, James Riehman, to serve from July 1, 2009, to September 30, 2009, indicating that a permanent appointment would be made effective October 1, 2009.
In a letter to the Board of September 16, 2009, the Commissioner advised the Board that Mark Ritter would serve as fiscal monitor to the Board from October 1, 2009, through September 30, 2011. In this letter of introduction, the Commissioner briefly described Ritter's qualifications for the position, the improvements in the district "[s]ince the appointment of a State monitor," and the anticipated areas in which Ritter would involve himself in the footsteps of the preceding fiscal monitors.
On September 30, 2009, the day before the effective appointment date, the Board filed a verified petition with the Commissioner seeking to stay the appointment. No accompanying brief was submitted in support of any emergent relief. In a subsequent letter of October 6, 2009, the Commissioner dismissed the petition, indicating that "th[e] matter should have been filed" with the Appellate Division because "review of a final decision of a State administrative agency or officer" was sought. With regard to the stay, the Commissioner pointed out that the criteria of Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), were not met, and there was "no showing that the district [would] suffer irreparable harm by the continuation of . . . a [fiscal] [m]onitor in the district." According to the Commissioner, there was also no demonstration that the Board would likely be successful on the merits. She pointed out that "the district continues to be eligible for appointment of a State Monitor pursuant to N.J.S.A. 18A:7A-55, based on the 2008 Comprehensive Annual Financial Report (CAFR) filed by the district." The Commissioner did grant some relief to the Board, which had alleged a violation of the provisions of N.J.S.A. 18A:7A-55, by not presenting a plan to address fiscal management and expenditure concerns, by requiring the fiscal monitor to "develop and implement such a plan within [forty-five] days, if one has not already been developed."*fn1
On appeal, the Board raises the following issues for our consideration:
THE CONTINUED APPOINTMENT OF A FISCAL MONITOR IN THE PLEASANTVILLE SCHOOL DISTRICT VIOLATED THE PROVISIONS OF N.J.S.A. 18A:7A-55.
THE STATE FISCAL MONITORS APPOINTED BY RESPONDENT DAVY TO THE PLEASANTVILLE SCHOOL DISTRICT HAVE FAILED TO COMPLY WITH THEIR DUTIES PURSUANT TO THE ...